Another judge to decide if anti-SLAPP statute applies in federal court

In response to a libel complaint filed by Yasser Abbas, one of the sons of Mahmoud Abbas, the Palestinian President, the defendants have filed an anti-SLAPP motion and a separate motion to dismiss the complaint for failure to state a claim. (The law firm representing Schanzer is the same one that filed an anti-SLAPP motion on behalf of the City Paper in response to the suit brought by Dan Snyder. Snyder ultimately dismissed his suit before the court ruled on the anti-SLAPP motion).

The Abbas complaint, filed September 20 in DC federal court, alleges that the Foreign Policy Group, LLC, which is alleged to be a division of the Washington Post, libeled Abbas in a June 5, 2012 article bylined by co-defendant Jonathan Schanzer. According to the complaint, the article suggested, through questions and links, that Abbas was improperly benefitting financially from his father’s status. The complaint alleges that the article contained false information and relied on dubious sources, and that the author never contacted Abbas prior to publication.

The majority of the anti-SLAPP motion is spent chronicling Abbas’ background, prior articles about his businesses, his alleged history of using litigation to silence critics, and the article in question. After providing this extensive background, the motion first argues that the anti-SLAPP statute applies in federal court:

Because D.C.’s Anti-SLAPP statue confers a substantive protection under District of Columbia tort law, it applies in federal court. See, e.g., Farah v. Esquire Magazine, 863 F. Supp. 2d 29, 36 & n.10 (D.D.C. 2012) (invoking decisions of the First, Fifth and Ninth Circuits applying anti-SLAPP statutes as substantive protections of state law and dismissing claims for defamation and related torts under the D.C. Act). As Judge Leon concluded in Sherrod v. Breitbart, 843 F. Supp. 2d 83, 85 (D.D.C.), appeal docketed, No. 11-7088 (D.C. Cir. Aug. 30, 2012), “the legislative history make[s] clear that the D.C. Anti-SLAPP Act is substantive.” As the Court further explained, “the statutory text” also “supports the conclusion that the statute is substantive.” Id.at 85 n.4. For example, the Act “shifts the burden of proof to the plaintiff to show her claims are likely to succeed” and “it is long settled that the allocation of [the] burden of proof is substantive in nature and controlled by state law.” Id. (quoting Godin v. Schencks,629 F.3d 79, 89 (1st Cir. 2010)). Similarly, the Act provides for an award of “attorneys’ fees and costs to the prevailing party,” and “such statutory provisions are substantive in nature” as well. Id.; see also Farah, 863 F. Supp. 2d at 36 n. 10 (“It was certainly the intent of the D.C Council and the effect of the law . . . to have substantive consequences”).

The motion next argues that the suit must be dismissed because it arises from an act in furtherance of the right of advocacy on issues of public interest, and Abbas cannot show that he is likely to prevail on the merits. On the first point (that the suit arises from an act in furtherance of the right of advocacy on issues of public interest), the motion argues that this requirement is amply satisfied because: (a) Congress is examining aid throughout the Middle East, and the comments were made against that backdrop; (b) they were made on a public forum about a public figure (Abbas); or (c) they were made on an issue of public interest.

On the second point (that Abbas allegedly cannot show that he is likely to prevail), the motion argues that this is the case because the allegedly false statements were not statements of fact, but protected opinion; were not about Abbas or were not defamatory; and the complaint did not plead facts showing that the defendants acted with the required fault. For each of these points, the anti-SLAPP motion relies on a memorandum filed in support of a motion to dismiss the complaint for failure to state a claim.

(If the defendants can show that the complaint fails to state a claim, one might wonder why they filed a separate anti-SLAPP motion? The answer is that the anti-SLAPP motion stops discovery; allows the introduction of material beyond that appended or incorporated to the complaint; changes the burden of proof (requiring dismissal unless a plaintiff can show a viable claim); and provides for the recovery of attorneys’ fees. On the other hand, but not just filing an anti-SLAPP motion, the defendants are protecting themselves in the even the court finds that the statute does not apply in federal court).

The Abbas suit was assigned to Judge Sullivan, who has not presided over a case where an anti-SLAPP motion was made. Of course, two of his colleagues have held that the statute is inapplicable in federal court (discussed here, here, and here), while another of his colleagues held it was applicable in federal court, and dismissed a suit (discussed here).

Given that two separate DC federal court judges have held that the statute does not apply in federal court, I would expect Abbas’ opposition to focus on this point. Whether he includes additional arguments made by other defendants (e.g., Home Rule) remains to be seen.

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About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado →

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